Thursday, March 21, 2019

Junk bite-mark 'evidence' analysis exposed: Toronto Star Investigative Reporter Kenyon Wallace reports that as bite-mark evidence is being discredited in the U.S. — including its role in more than two dozen wrongful arrests or convictions — Canadian courts appear to be rubber-stamping its use. (A well-researched important investigative piece on a very important issue both in Canada and The USA: Bravo! HL)


 PASSAGE ONE OF THE DAY:  "A Star investigation has found that as bite-mark evidence is being discredited in the U.S. — including its role in more than two dozen wrongful arrests or convictions — Canadian courts appear to be rubber-stamping its use. The Supreme Court of Canada has stressed the importance of judges as gatekeepers for the courts. Just last month, during a Toronto sex assault trial, a judge, who said he had never before seen an expert in bite-mark identification, allowed one to testify without question. Like hair microscopy and bullet lead analysis before it, bite-mark analysis is coming under intense scrutiny at a time when forensic science in general is facing a reckoning. Patrick LeSage, former Chief Justice of the Ontario Superior Court of Justice, warned more than 10 years ago that purportedly scientific evidence pointing to identity should not be used in criminal trials unless it has a “strong empirical and/or theoretical foundation.” In an interview with the Star, he said expert testimony, which is opinion evidence, must be carefully scrutinized by judges before it is admitted. Judges can use hearings on an expert’s qualifications to also question the lawyers about their witness’s field of expertise, LeSage said."

PASSAGE TWO OF THE DAY:  " Former Chief Justice of the Ontario Superior Court Patrick LeSage says judges must be better gatekeepers to ensure faulty science doesn’t make its way into the courts. “Judges have to be constantly aware. Judges don’t have to be scientists, but they need to know there are pitfalls and areas they can easily get lulled into,” said LeSage, who in 2005, presided over an inquiry into the wrongful conviction of James Driskell, a Winnipeg man sentenced to life imprisonment for murder, a conviction that hinged partly on now-discredited hair microscopy evidence. In May 2013, after Brad Streiling was arrested, David Sweet examined five pairs of anonymous dental casts. He used a computer to help him compare the edges of the lower teeth of each cast to a photograph of the injury on Noah Cownden’s shoulder. He concluded he could exclude all, except dental cast 3. This was verified, he said, by two other forensic odontologists in B.C. Streiling’s teeth were among those Sweet excluded. In an interview with the Star, Sweet said a decision to exclude a suspect can be made with “100 per cent certainty,” a claim the Innocence Project’s Fabricant calls “absurd.” Chris Fabricant, a lawyer with the New York Innocence Project, believes bite-mark evidence "has no place in court." “Nothing in science — not DNA, not nuclear physics — is ‘100 per cent certain.’ Nothing. That a dentist would make such a claim, despite never even having such an ability tested, is all the more absurd,” Fabricant said. There was no hearing on the admissibility of bite-mark evidence in Streiling’s trial. Neither the defence nor prosecution, which called the evidence, raised any concerns, and the judge allowed it in.

STORY:  "Bite-mark analysis has been shown to be flawed science. So why is it allowed in Canadian courts?" by Toronto Star Investigative Reporter Kenyon Wallace, published by The Toronto Star on March 21, 2019.

CAPTION; "A 2013 Australian study asked 15 experts to look at photos of supposed bite marks. Experts expressed a wide range of opinions about whether the injuries were bite marks."

 CAPTION: "Is it a bite mark? Australian researchers asked bite-mark experts to evaluate photos from real cases to see whether they identified skin markings as being the result of a human bite. The experts' opinions differed. "

CAPTION: "Steven Mark Chaney hugs his mother, Darla Chaney after being released from prison in 2015. The Texas Court of Criminal Appeals overturned his conviction which had been based in large part on the testimony of two forensic odontologists.

CAPTION: "Vancouver dentistry professor and forensic odontologist David Sweet is frequently called on to give bite-mark evidence."  

CAPTION: "Forensic odontologist Dr. Richard Souviron points to a blown-up photograph of accused murderer Ted Bundy's teeth during Bundy's murder trial in Miami, Fla. in 1979. Bite-mark evidence played a role in securing Bundy's conviction.

CAPTION: "Venecia Audy, 3, had several suspected bite marks on her body."

CAPTION: "Chris Fabricant, a lawyer with the New York Innocence Project, believes bite-mark evidence "has no place in court."



GIST: “Tell me what happened, don’t leave anything out.” The crime boss wanted Bradley Streiling to tell him everything about the death of two-year-old Noah Cownden, Streiling’s stepson. Streiling began, haltingly, to recount how Noah had slipped from the bathtub at his family’s Victoria, B.C., home five years earlier. Then, as a hidden microphone recorded, Streiling’s confession. Filled with rage, he gave the boy a push. “I held him basically by the upper neck, lower jaw…and just hit him down a couple times.” The boy’s “eyes glossed over, and he…kind of made a wheezing sound and never woke up again.” The crime boss was actually an undercover Mountie who had just reached the culmination of a nearly five-month-long sting. Police believed that Streiling, 29, had bashed Noah’s head against the floor, causing the little boy’s brain to bleed and swell so much that oxygen couldn’t reach it. They thought they had him. But the case against Streiling unraveled in an acquittal. The judge ruled Streiling’s confession had not been proven and she was persuaded by evidence that purported to show someone other than Streiling had dug their teeth into the boy’s shoulder, leaving a bite mark.




Practitioners of bite-mark analysis, known as forensic odontologists, claim that they can both identify bite marks on human skin, and link such marks to an individual’s teeth — often in cases of murder, child abuse or sexual assault. This kind of bite-mark analysis is subjective, relying on experts’ opinions. Numerous studies and reports have found the underlying assumptions of bite-mark analysis — that human teeth are unique and that skin can accurately record their impressions — haven’t been proven scientifically. Research shows that skin’s elastic properties make it a bad medium for accurately recording teeth impressions; no two bite marks made on cadavers from the same set of teeth are identical, one study found; and in another, experts couldn’t agree on whether an injury was made by teeth, suction or a bottle top. One study found that of 89 bite marks made on cadavers with one set of teeth, none of the marks matched the set that created them when a computer program performed detailed measurements. The closest match was a different set of teeth in a randomized group of more than 400 other sets. In 2016, scientists and engineers appointed by U.S. president Barack Obama arrived at this damning conclusion: scientific research “strongly suggests that examiners cannot consistently agree on whether an injury is a human bite mark and cannot identify the source of the bite mark with reasonable accuracy.” They also said the likelihood of bite-mark analysis ever becoming scientifically valid was “low.” This followed a major report in 2009 by the U.S. National Academy of Sciences that found no scientific studies support experts’ assessment that teeth marks on skin can identify a biter.





A 2013 Australian study asked 15 experts to look at photos of supposed bite marks. Experts expressed a wide range of opinions about whether the injuries were bite marks.
 
Study after study by scientists in the U.S., the U.K. and Australia culminated in a withering report published about two years ago in which 38 legal, medical and scientific scholars found the “rise and possible fall” of bite-mark evidence has highlighted the “weak scientific culture” of forensic science and the “law’s difficulty in evaluating and responding to unreliable and unscientific evidence.”

A Star investigation has found that as bite-mark evidence is being discredited in the U.S. — including its role in more than two dozen wrongful arrests or convictions — Canadian courts appear to be rubber-stamping its use. The Supreme Court of Canada has stressed the importance of judges as gatekeepers for the courts. Just last month, during a Toronto sex assault trial, a judge, who said he had never before seen an expert in bite-mark identification, allowed one to testify without question. Like hair microscopy and bullet lead analysis before it, bite-mark analysis is coming under intense scrutiny at a time when forensic science in general is facing a reckoning. Patrick LeSage, former Chief Justice of the Ontario Superior Court of Justice, warned more than 10 years ago that purportedly scientific evidence pointing to identity should not be used in criminal trials unless it has a “strong empirical and/or theoretical foundation.” In an interview with the Star, he said expert testimony, which is opinion evidence, must be carefully scrutinized by judges before it is admitted.
Judges can use hearings on an expert’s qualifications to also question the lawyers about their witness’s field of expertise, LeSage said.




Is it a bite mark? Australian researchers asked bite-mark experts to evaluate photos from real cases to see whether they identified skin markings as being the result of a human bite. The experts' opinions differed.  (Mark Page)

His concerns about forensic science in general were echoed by Bruce MacFarlane, former Assistant Deputy Attorney General of Canada responsible for federal prosecutions, who wrote that warning flags should be raised when it comes to expert witnesses who rely mainly on their experience “rather than on an appropriate scientific underpinning.” In the U.S., at least 30 wrongful arrests or convictions have been based at least in part on bite-mark evidence, according to the New York-based Innocence Project. The Texas Court of Criminal Appeals recently overturned the conviction of Steven Chaney, imprisoned for nearly 30 years for double murder. His conviction was based in large part on the testimony of two forensic odontologists. The appeals court said “the body of scientific knowledge underlying the field of bite-mark comparisons evolved in a way that discredits almost all the probabilistic bite-mark evidence at trial.” “Bite-mark analysis is subjective speculation masquerading as scientific evidence,” said Chris Fabricant, a lawyer with the New York Innocence Project who represented Chaney. “It has no place in court.” In Canada, three high-profile forensic odontologists (who are also dentists) have been frequently called on to give bite-mark evidence: Bob Wood, former head of dentistry at University Health Network in Toronto; Robert Dorion, responsible for the forensic dentistry department at the Laboratoire de sciences judiciaires et de médecine légale in Montreal; and Vancouver dentistry professor David Sweet. All have held leadership positions in the American Board of Forensic Odontology (ABFO), the field’s U.S.-based certification group, and all vigorously defend their work in bite-mark analysis.



Steven Mark Chaney hugs his mother, Darla Chaney after being released from prison in 2015. The Texas Court of Criminal Appeals overturned his conviction which had been based in large part on the testimony of two forensic odontologists.  (David Woo)

It was Sweet, director of UBC’s Bureau of Legal Dentistry (BOLD) forensic odontology lab, who was called in to assist with the autopsy of Noah Cownden after an odd-shaped injury was found on the boy’s shoulder.




Noah was precocious: at just 22 months old, he could spell his own name by saying the letters. The kid with blue eyes, a button nose and light brown hair loved hockey, which surprised his parents because no one in the family played. He was always in a hurry to keep up with his three older siblings. On April 9, 2008, Noah suffered a massive head injury while alone in the care of his stepfather, Brad Streiling, who told investigators the little boy fell from the edge of the bathtub.
At the hospital, doctors found Noah had a subdural hematoma — blood pooling outside the brain. They cut away part of Noah’s skull to drain the blood and relieve the pressure. When that didn’t work, they removed part of the brain. But the swelling continued. Noah died a short time later, three days shy of his second birthday. The following week, forensic investigators, including Sweet, stood over Noah’s body in the morgue at B.C. Children’s Hospital. Sweet zeroed in on what looked to him like a bite mark on Noah’s left shoulder. He also found two other marks he thought could be bite marks — one on the boy’s left cheek and another on the back of his thigh.
Sweet measured the markings to see if the dimensions were similar to a human jaw.



Vancouver dentistry professor and forensic odontologist David Sweet is frequently called on to give bite-mark evidence.  (boldlab.ubc.ca)

“You don’t get a better case than this. Here’s the odontologist personally examining the marks, not just depending upon photos,” Sweet said in a recent interview. Sweet would not provide his reports but agreed to read parts over the phone. He concluded the marks on Noah’s cheek and thigh were “suggestive of a human bite mark.” The injury on the boy’s shoulder showed more detail. Sweet saw several teeth “clearly outlined” and deemed the injury of “high forensic significance.” He concluded the mark was a single lower arch of teeth on an angle pointing upwards, as if the biter had been standing behind the boy and leaned over the shoulder to make the bite. There were no marks corresponding to upper teeth, which Sweet said could have been because clothing had been in the way or the biter had no upper teeth. “You see, you’ve got a dentist who understands development of the teeth and sizes and where they’re located so they can interpret the injury,” he told the Star.




Bite-mark analysis, used for more than four decades in hundreds of American cases, had a star turn in 1979 during Ted Bundy’s televised double-murder trial in Florida. Forensic odontologist Richard Souviron testified that bite marks on one victim’s body matched Bundy’s teeth, helping to secure a guilty verdict.




Forensic odontologist Dr. Richard Souviron points to a blown-up photograph of accused murderer Ted Bundy's teeth during Bundy's murder trial in Miami, Fla. in 1979. Bite-mark evidence played a role in securing Bundy's conviction.  (Uncredited)

Forensic odontology is not recognized as a specialty by the American Dental Association or the Canadian Dental Association. Dentists seeking recognition of their credentials can apply to become diplomates of the American Board of Forensic Odontology (ABFO). There is no certification body in Canada. Canadian courts have not tracked forensic evidence that is admitted, so it is unclear how such evidence has been used during trials or hearings, or how often. A recent study found that bite-mark analysis was admitted in at least 14 Canadian cases involving serious crimes or child guardianship disputes. In each case, judges did not question the scientific validity of bite-mark analysis. Four cases took place after the damning 2009 National Academy of Sciences report. “These findings suggest the current system isn’t working as it should,” said Jason Chin, a coauthor of the study and a researcher and lecturer at the University of Queensland, Australia. “The problem seems to be that many practices have been accepted in the past, they seem superficially credible, and judges generally don’t seem to want to wade into the science.” Bite-mark experts argue that recently strengthened standards and guidelines no longer allow definitive matching. Practitioners are now encouraged by the ABFO, the U.S.-based certification group, to come to one of three conclusions: the suspect can be “excluded” as the biter, “not excluded,” or the evidence is inconclusive. While Canada’s top bite-mark experts defend their work, two acknowledged there are problems with the field’s scientific foundations: David Sweet, in a 2001 study he co-authored, wrote that there is a “lack of hard scientific evidence to support the assumptions made by forensic dentists when analyzing bite marks”; and Bob Wood told the Star that the scientific underpinnings of attributing a bite mark to a suspect are currently “weak.” He also said skin is a poor medium for accurately recording bite marks and is calling for a moratorium on attributing a bite mark to a specific individual. Yet, Sweet and Wood challenge some of the recent U.S. research that found problems with bite-mark analysis. Sweet dismissed the President’s council study as “weak” and noted that U.S. prosecutors, the FBI and crime lab directors have criticized it, too. Wood criticized a study that showed bite-mark experts can’t consistently agree on which skin injuries are bite marks. He was one of the experts surveyed for the study and told the Star its design did not reflect how bite marks are analyzed in real cases.
Sweet, who noted his role in helping to exonerate wrongly convicted American defendants, said he always attempts “to do the right thing and to be as conscientious and accurate as possible.”
Robert Dorion said it was wrong to say there is no scientific evidence showing human teeth are unique. He claimed there is research showing human skin can accurately record teeth and that he had done some of this research and had “demonstrated that at presentations.” When asked to provide it, Dorion sent the Star a list of bite-mark presentations he has given in the U.S. and France since 2012.



Police didn’t believe Noah Cownden’s massive head injury was the result of a fall. They suspected Streiling but needed proof. So four years after Noah died, investigators from several police forces, including the RCMP, resorted to a “Mr. Big” sting. Mr. Big stings are controversial operations that entice suspects into joining criminal organizations, which in reality are creations of the police. Undercover officers posing as gang members befriend targets. The goal is to make the target comfortable enough to talk about the crime of which he is suspected. The Supreme Court ruled Mr. Big confessions are admissible but only if the reliability of the confession and police conduct, among other things, are closely scrutinized by the judge. Beginning in November 2012, officers conjured 52 scenarios designed to make Streiling talk. They took him on a boat to test-fire automatic weapons. They paid him to threaten a (fake) customs officer and drop bags of contraband (also fake).
In one scenario, a (fake) gang member pretended to beat up his pregnant partner while Streiling waited outside the room. The scenario was designed to show that the organization would not judge Streiling if he had committed similar “non-braggable” offences. As the operation moved to its climax, police secretly recorded a meeting between Streiling and the head of the organization — “Mr. Big.” The boss told Streiling that investigators had more evidence implicating him in Noah’s death and offered a lifeline: a terminally ill member of the group would confess to the killing. Streiling just had to provide the details so that the fall guy could convince the police.
Streiling’s confession would play a large role at trial. So would evidence from Dr. David Sweet.




In 2014, a year before Streiling’s trial, and as criticism of bite-mark analysis mounted, the American Board of Forensic Odontology conducted a study in which nearly 40 forensic dentists with an average of 20 years experience were asked to analyze 100 photos. It found that the experts often could not agree if the photos were sufficient for analysis and often could not agree which injuries were bite marks. “If two equally ‘qualified’ and experienced forensic odontologists look at the exact same injury and routinely come to opposite conclusions, the discipline is fundamentally unreliable, even at the threshold level of determining if the injury at issue is even a bite mark, to say nothing of attempting to associate or exclude any particular individual from having created the injury,” said the Innocence Project’s Fabricant. Wide disagreement among bite-mark experts was on display in a prominent 2012 Manitoba court case involving the gruesome death of a child. Three experts gave three different opinions. Jason Kines, 31, was on trial for the first-degree murder, aggravated sexual assault and sexual interference in the 2006 death of his girlfriend’s daughter, Venecia Audy.



Venecia Audy, 3, had several suspected bite marks on her body.

The three-year-old had suffered a skull fracture, broken ribs, and a spinal injury. She had several suspected bite marks on her body, including one just above her vagina. The murder case against Kines, who was not at home when Venecia died, hinged on bite-mark evidence from Sweet, a Crown witness. During a hearing to determine the admissibility of this evidence, a defence lawyer questioned the science behind Sweet’s work, and Sweet acknowledged that there is no proof people’s teeth are unique. The judge allowed Sweet’s evidence into the trial. Sweet testified that Kines’s “very unusual” teeth led to his conclusion that Kines was the “probable” biter, telling the court that he was “very confident” in his conclusion. “Dr. Sweet’s opinion that Kines was the ‘probable biter’ was scientifically invalid because there was (and is) no evidence that bite-mark analysis works in the way he was claiming,” said researcher Jason Chin. “In other words, when someone says ‘probable biter’ in cases like Kines’s, how often are they right or wrong on average? Most importantly, what is the false positive rate — how often do they say ‘probable biter’ and the person was not the biter? Simply put, we do not know the answers to those questions.” Under questioning, Sweet told the judge and jury that mistakes by bite-mark experts had contributed to wrongful convictions in the U.S. that resulted in death sentences. But the judge didn’t challenge the scientific validity of Sweet’s analysis. Instead, he seemed to rely on it to reach a decision. Because Sweet said Kines was the “probable” biter and not definitively the biter, the judge dismissed the jury and acquitted Kines. An appeals court ordered a new trial. Then, the case against Kines began to crumble. In a supplemental report, Sweet changed his analysis from Kines being the “probable” biter to saying he could not exclude Kines as the biter — a lower level of confidence. He told the Star he did this to address evolving standards for what bite mark experts like himself could say in court and because the Crown asked him to broaden his analysis to consider the general population. The defence asked forensic odontologist Robert Dorion for his opinion and he disagreed with most of Sweet’s findings. Dorion concluded that all of the suspected bite marks had little or no value as evidence. Dorion said that one of the marks Sweet had attributed to Kines could not have come from the accused “without dislocating the jaw.” He also said three injuries suggested Venecia had bitten herself. A third bite-mark analyst, hired by the Crown to review Sweet’s work, agreed with Sweet’s assessment of the majority of the injuries, but came to different conclusions on four others. A final piece of evidence seemed to undermine the bite-mark evidence: DNA recovered from the bite marks on Venecia’s body revealed two profiles of people other than Kines, according to a Crown attorney with the Manitoba Prosecution Service. The Crown withdrew the charges and Kines walked. (Kines was found guilty of failing to provide the necessities of life and was sentenced to one year, less time served). Whoever killed Venecia Audy has not been brought to justice. It’s not clear if what happened in the Kines case and its implications for bite-mark evidence was noticed by any other court. Former Chief Justice of the Ontario Superior Court Patrick LeSage says judges must be better gatekeepers to ensure faulty science doesn’t make its way into the courts. “Judges have to be constantly aware. Judges don’t have to be scientists, but they need to know there are pitfalls and areas they can easily get lulled into,” said LeSage, who in 2005, presided over an inquiry into the wrongful conviction of James Driskell, a Winnipeg man sentenced to life imprisonment for murder, a conviction that hinged partly on now-discredited hair microscopy evidence. In May 2013, after Brad Streiling was arrested, David Sweet examined five pairs of anonymous dental casts. He used a computer to help him compare the edges of the lower teeth of each cast to a photograph of the injury on Noah Cownden’s shoulder. He concluded he could exclude all, except dental cast 3. This was verified, he said, by two other forensic odontologists in B.C.
Streiling’s teeth were among those Sweet excluded. In an interview with the Star, Sweet said a decision to exclude a suspect can be made with “100 per cent certainty,” a claim the Innocence Project’s Fabricant calls “absurd.”

Chris Fabricant, a lawyer with the New York Innocence Project, believes bite-mark evidence "has no place in court."  


“Nothing in science — not DNA, not nuclear physics — is ‘100 per cent certain.’ Nothing. That a dentist would make such a claim, despite never even having such an ability tested, is all the more absurd,” Fabricant said. There was no hearing on the admissibility of bite-mark evidence in Streiling’s trial. Neither the defence nor prosecution, which called the evidence, raised any concerns, and the judge allowed it in. Streiling, who could not be reached for comment, testified that his confession to Mr. Big was false. He believed that if he didn’t confess, he would be kicked out of the organization. Streiling’s lawyer Martin Allen told the Star that the defence theory was that Noah had a prior brain injury that made him “susceptible to a traumatic and fatal bleed from a relatively minor blow.” In her ruling, the judge said the Crown’s medical evidence wasn’t strong enough to overcome weaknesses in its case. The judge ruled Streiling’s confession was “vague and lacking in detail” and that it was “too unreliable to accept as a true admission of guilt.” “Police must be aware that when they undertake Mr. Big investigations, they are more likely to be successful in obtaining a conviction on the strength of such confessions in cases where there is independent confirmatory evidence…and not evidence that is subject to differing opinions and interpretation such as expert medical evidence,” she noted in her judgment. But Sweet’s evidence gave the judge comfort that Streiling was the wrong man. She was convinced the mark was a bite and that it came from someone else. “Since the evidence does establish that Noah was bitten by an adult other than Mr. Streiling, I must consider that fact as an important part of my analysis,” she wrote in her judgment. “Absent any other explanation, the bite evidence suggests that Noah suffered abuse at the hands of a person other than Mr. Streiling.""

The entire story can be read at:
03/21/bite-mark-evidence-has-been-shown-to-be-flawed-science-so-why-is-it-allowed-in-canadian-courts.html

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher; The Charles Smith Blog.

Susan Neill-Fraser: Australia: Extraordinary Development: Fresh and Compelling! Judge opens the door to an appeal after finding that DNA evidence of a then homeless teenager Meaghan Vass found on board the yacht (Four Winds) and an affidavit tendered to the court that mirrored recent statements made during an interview with 60 Minutes (television documentary) that she had been on board — contrary to what Ms Vass said at the 2010 trial — met the criteria of "fresh and compelling" needed for the application to succeed.


PASSAGE OF THE DAY:  "The affidavit contains direct and detailed admissions of Ms Vass's involvement in events aboard the [yacht] Four Winds on the relevant night," Justice Brett said. "In particular, Ms Vass states that she was present on the yacht then with two identified male companions. She witnessed at least one of the males assault Mr Chappell. She recalls seeing a lot of blood."

STORY: "Sue Neill-Fraser wins right to appeal conviction for murder of partner Bob Chappell," by reporter Alexandra Humphreys, published by ABC News on March 21, 2019.

GIST: "Hobart woman Susan Neill-Fraser has won her application for an appeal against her murder conviction. Neill-Fraser, 65, who was found guilty of the 2009 murder of her partner Bob Chappell, succeeded in her bid to convince a judge her legal defence had "fresh and compelling" evidence which should be heard. Today, Justice Michael Brett detailed his reasons to a packed courtroom for almost an hour before revealing that Neill-Fraser would be granted leave to appeal her murder conviction...............Justice Brett found that DNA evidence of a then homeless teenager Meaghan Vass found on board the yacht and an affidavit tendered to the court that mirrored recent statements made during an interview with 60 Minutes that she had been on board — contrary to what Ms Vass said at the 2010 trial — met the criteria of "fresh and compelling" needed for the application to succeed. "The affidavit contains direct and detailed admissions of Ms Vass's involvement in events aboard the [yacht] Four Winds on the relevant night," Justice Brett said. "In particular, Ms Vass states that she was present on the yacht then with two identified male companions. She witnessed at least one of the males assault Mr Chappell. She recalls seeing a lot of blood. "The affidavit does not directly address what became of Mr Chappell. Ms Vass claims that she cannot recall leaving the yacht or what happened after the assault." The judge said he did not need to make a finding on its "credibility". He said he was satisfied Neill-Fraser had a reasonable case to present to the Court of Criminal Appeal, and that it was in the interests of justice for leave to be granted. If the Court of Criminal Appeal upholds the appeal, Neill-Fraser may face a retrial."

The entire story can be read at:
https://www.abc.net.au/news/2019-03-21/susan-neill-fraser-appeal-murder-conviction-decision/10925052

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher; The Charles Smith Blog.

Wednesday, March 20, 2019

Susan Neill-Fraser: Australia: Bulletin: Bulletin: Judgment Day: Thursday, March 21 set for decision on her battle to again appeal her conviction for killing husband Bob Chappell on the couple's Four Winds yacht moored at Sandy Bay on Australia Day 2009, 9News reports..."Much of Neill-Fraser's last-ditch freedom bid, that began in October 2017, has centred around the whereabouts of then-homeless teenager Meaghan Vass, who's DNA was found aboard the Four Winds yacht. Prior to the appeal bid beginning in court, Vass signed a document saying she was on the boat the night of the murder but backflipped when giving evidence, telling the court it was not true and she put her name to it under threats. The case was adjourned in February for a decision but was re-opened earlier this month so a new affidavit from Ms Vass about her whereabouts on January 26, 2009 could be included."


PASSAGE OF THE DAY: "Neill-Fraser's appeal bid has heard from a raft of witnesses including retired Victorian detective Colin McLaren, who was researching and interviewing people linked to the case for a book and documentary. Director of Public Prosecutions lawyer Daryl Coates has accused Mr McLaren of fabricating Ms Vass's April statement that she was on the boat. Mr McLaren said he drafted the statement but didn't make it up. Neill-Fraser was in 2010 found guilty of bludgeoning Mr Chappell and dumping him in the River Derwent. His body has never been found. Neill-Fraser has maintained her innocence but several appeals against her conviction have failed."

-------------------------------------------------------------

STORY: "Judgment date in Neill-Fraser freedom bid," reported by AAP  (Australian Associated Press) published By 9News on March 20, 2017.

GIST: "Hobart woman Susan Neill-Fraser, who's in jail for killing her husband, will soon find out whether she has the won the right to again appeal her murder conviction. Neill-Fraser is serving 23 years' behind bars for killing Bob Chappell on the couple's Four Winds yacht moored at Sandy Bay on Australia Day 2009. Neill-Fraser will be granted leave to appeal if her legal team has managed to convince a judge there is "fresh and compelling" evidence. Justice Michael Brett will deliver his judgment on whether that's occurred on Thursday afternoon in Hobart Supreme Court. Much of Neill-Fraser's last-ditch freedom bid, that began in October 2017, has centred around the whereabouts of then-homeless teenager Meaghan Vass, who's DNA was found aboard the Four Winds yacht. Prior to the appeal bid beginning in court, Vass signed a document saying she was on the boat the night of the murder but backflipped when giving evidence, telling the court it was not true and she put her name to it under threats. The case was adjourned in February for a decision but was re-opened earlier this month so a new affidavit from Ms Vass about her whereabouts on January 26, 2009 could be included. A March edition of Channel Nine's 60 Minutes, shown on mainland Australia but not in Tasmania, revealed Ms Vass had made a new affidavit. The case was set down for a mention on Thursday, but that was changed late on Wednesday to a judgment. Neill-Fraser's appeal bid has heard from a raft of witnesses including retired Victorian detective Colin McLaren, who was researching and interviewing people linked to the case for a book and documentary. Director of Public Prosecutions lawyer Daryl Coates has accused Mr McLaren of fabricating Ms Vass's April statement that she was on the boat. Mr McLaren said he drafted the statement but didn't make it up. Neill-Fraser was in 2010 found guilty of bludgeoning Mr Chappell and dumping him in the River Derwent. His body has never been found. Neill-Fraser has maintained her innocence but several appeals against her conviction have failed."



The entire story can be read at:
https://www.9news.com.au/2019/03/20/17/01/judgment-date-in-neill-fraser-freedom-bid
  
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher; The Charles Smith Blog.

Kelvin Alexander: North Carolina: Marshall Project post (reporter Joseph Neff) demonstrates how a DNA test might help exonerate this man - noting that a judge won't allow it. (The North Carolina judge has denied testing in a 1992 murder case, but lawyers want shell casings examined.)..."In September 1992, Carl Boyd was found shot dead at the Amoco filling station he ran in Norlina, North Carolina. Two days later police arrested Kelvin Alexander for murder. A year later, as jury selection was to begin, Alexander’s lawyers met with the district attorney who said he would accept a plea to second-degree murder. An eyewitness was prepared to testify that she saw Alexander leaving the gas station at the time of the murder, but the prosecutor didn’t provide her statements to Alexander’s lawyers or even give her name. Alexander initially rejected the deal. He had always told his lawyers that he was innocent and had a solid alibi. His lawyers applied pressure to him though: If he took the deal, he could be free someday. If not, he’d likely end up on death row. Alexander pleaded guilty. The following day, Alexander and his lawyers first learned the identity of the eyewitness when she testified at his sentencing hearing. The lawyers had no time to investigate her or her statements. The local paper referred to her as “the surprise witness.” Alexander was sentenced to life with eligibility for parole after 15 years."


PASSAGE OF THE DAY: "DNA has exonerated more than 360 wrongly convicted people; 10 percent had entered guilty pleas, according to the Innocence Project. The project wins exonerations for wrongly convicted people through DNA testing. North Carolina law says judges must approve tests if the evidence could change the outcome of the case. In Rabil’s case, the judge declined because the tests wouldn’t show who shot the gun that killed a gas station manager in 1992. But that doesn’t mean such a test would be useless, says Vanessa Potkin, a senior attorney at the Innocence Project. “Results won’t reveal who pulled the trigger, but they could indicate who loaded the gun.”

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PUBLISHER'S NOTE: I adopt the words of the formidable Ohio criminal defence lawyer lawyer/blogger Jeff Gamso..."JUST TEST THE FUCKING DNA."
 http://gamso-forthedefense.blogspot.com/2018/05/what-is-truth-said-jesting-pilate.html

Harold Levy: Publisher: The Charles Smith Blog.

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POST: "A DNA Test Might Help Exonerate This Man. A Judge Won’t Allow It," by  Staff Writer Joseph Neff,   published by The Marshall Project on March 18, 2019.  ( Joseph Neff is an investigative reporter who worked at The News and Observer of Raleigh, N.C., and The Associated Press. He was a Pulitzer finalist and has won awards including the Robert F. Kennedy Journalism Award, the MOLLY National Journalism Prize, the Society of Professional Journalists' Sigma Delta Chi and others. He was a John S. Knight Fellow at Stanford University.)

SUB-HEADING:  "North Carolina judge denies testing in a 1992 murder case, but lawyers want shell casings examined."



Mark Rabil wishes that all North Carolina trial judges would catch up with the laws and labs. Rabil, a Wake Forest University law professor who runs the school’s innocence clinic, hit a roadblock when a judge denied his request for DNA tests on three .22 caliber shell casings found at a murder scene 26 years ago. The case is the strongest he’s seen in 10 years at the clinic, Rabil said, even though his client pleaded guilty to second-degree murder. Guilty pleas are very difficult to overturn, making Rabil feel his quest to test is “a Hail Mary pass for justice.” But the tests might not be the long shot they appeared to be when he filed his motion in 2016. In July, a top government forensic scientist testified to Congress about how public investments in DNA research were transforming once useless items into valuable evidence. “In fact, methodologies enabling the recovery of DNA from shell casings ejected from firearms is over 10 times more successful than it was just 10 years ago,” said Gerald LaPorte, director of the Office of Investigative and Forensic Sciences at the U.S. Department of Justice. All states, including North Carolina, have written laws to expand post-conviction DNA tests. Such tests have revealed that innocent people pleaded guilty to serious crimes. DNA has exonerated more than 360 wrongly convicted people; 10 percent had entered guilty pleas, according to the Innocence Project. The project wins exonerations for wrongly convicted people through DNA testing. North Carolina law says judges must approve tests if the evidence could change the outcome of the case. In Rabil’s case, the judge declined because the tests wouldn’t show who shot the gun that killed a gas station manager in 1992. But that doesn’t mean such a test would be useless, says Vanessa Potkin, a senior attorney at the Innocence Project. “Results won’t reveal who pulled the trigger, but they could indicate who loaded the gun.”  Marvin Rooker, one of Alexander’s lawyers, later testified that he was not given damaging information about Orlinda Lashley, the witness who constituted the state’s entire case. In her first statement, Lashley said the gas station manager had died holding her hands inside the gas station. In subsequent statements she said she never entered the gas station. She said she had known Alexander all of her life but failed to identify him in a photo lineup.Asked Alexander’s height by police, she said he was between 5 feet 6 inches and 5 feet 8 inches tall. Alexander is 6 feet 3 inches tall. These conflicting accounts convinced Rabil, the Wake Forest law professor, that Alexander was innocent. If the casings contain viable DNA, Rabil believes the results will connect the murder to a career criminal identified by an informant in a 2004 interview with investigators. Alexander challenged his conviction in 2006 but failed to convince a judge to overturn the guilty plea. Rabil and Carson Smith, a Charlotte lawyer working pro bono, took on the case in 2014. They filed an official request for DNA testing in March 2016, in the Warren County courthouse where Alexander was convicted. The district attorney never responded to the motion. The judge never held a hearing. After two and half years passed, Superior Court Judge Henry Hight denied the request. “The firearm which fired the bullet which killed Carl Eugene Boyd has never been recovered and the requested DNA testing would not reveal the identity of who fired that firearm and killed Carl Eugene Boyd,” Hight wrote. Rabil is appealing the decision. Hight, who had not handled the case prior to 2016, declined to discuss his ruling because of the appeal. District Attorney Mike Waters did not return phone calls. Alexander’s attorneys said Lashley, the witness, recently slammed the door on them. The Marshall Project’s calls to her home went unanswered. Technological advances make cartridges and casings a much more reliable source of DNA evidence, according to Victor Weedn, a George Washington University professor and past president of the American Academy of Forensic Scientists. Scientists have figured out how to extract more information from trace amounts of DNA, even degraded DNA. The risk of DNA contamination and misleading results still exists in testing tiny amounts of touch DNA or objects handled by more than one person. Statistical tools have helped to improve the analysis of samples containing a mix of two or more persons’ DNA. Like any scientific endeavor, there’s room for improvement, but, Weedn said, “The technologies have truly gotten better.” The Trace recently reported how the crime lab at the San Diego Police Department has used new techniques on casings in more than 1,000 cases from 2015 to 2017 and recovered DNA from 30 percent of the samples. One recent example: Last year Kansas City police used shell casing DNA to crack a murder investigation. A woman was shot in her bedroom in April. Police found several casings outside the window and sent them for DNA testing. They ran the results through the FBI’s DNA database and got a match. Investigators then connected the casing to a gun found under the suspect’s car seat. The suspect’s DNA was found on the gun. Phone data put the suspect’s cell phone in the area at the time of the shooting. Police benefit from scientific research into best practices on handling casings and cartridges. Police should keep the casings dry and store them in paper bags. Plastic bags retain moisture, which degrades DNA. Alexander’s lawyers don’t know how the evidence has been stored. They don’t even know if the casings exist because the district attorney never responded to their motion or several letters. They are pushing ahead anyway, appealing Hight’s decision to the state Court of Appeals. “We have nothing to lose,” Rabil said, “and everything to gain.""
The entire post  can be read at:
https://www.themarshallproject.org/2019/03/18/a-dna-test-might-help-exonerate-this-man-a-judge-won-t-allow-it

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher; The Charles Smith Blog.

Tuesday, March 19, 2019

Kathleen Folbigg: Baby death inquiry under way. Newcastle Courier (reporter Joanne McCarthy) reports that four forensic pathologists have testified that smothering can leave no signs. But the Inquiry heard that there is nothing from a forensic pathology viewpoint to suggest any of the four Folbigg babies, Caleb, Patrick, Sarah and Laura, had been killed, let alone smothered by their mother.


PASSAGE OF THE DAY: "Professor Cordner, that there is nothing from a forensic pathology viewpoint to suggest any of the four Folbigg babies, Caleb, Patrick, Sarah and Laura, had been killed, let alone smothered by their mother. Professor Cordner found there were identifiable natural causes of death for Patrick and Laura, and natural causes are a plausible explanation for the deaths of Caleb and Sarah. In his report Professor Cordner said much of the forensic pathology discussed at the trial was "misconceived, based as it is on a flawed understanding of asphyxia". "Asphyxia is not a helpful word in forensic pathology, is not understood in a uniform way, is not a diagnosis and is not diagnosable," he wrote. "Yet the word is at the core of the main question asked repeatedly by the prosecution during the trial : 'Did this child/these children suffer an acute catastrophic asphyxiating event?'"Professor Cordner said the question was not capable of an answer if it was intended to be a technical question in forensic pathology. In his report Professor Cordner said the trial included evidence given under circumstances where a "default diagnosis of murder" was discussed. "The fact that an infant can be smothered without leaving signs, the misunderstanding of asphyxia (in particular that it is a diagnosis and/or that it can be diagnosed), and there being no families in the literature with three or four SIDS, contributed significantly to a homicide hypothesis which in fact has little forensic pathology content." The three other forensic pathologists told the inquiry they agreed with Professor Cordner about his views on the use of the word asphyxia as "not a diagnosis".

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STORY: "Four forensic pathologists tell Folbigg baby death inquiry that smothering can leave no signs ," by reporter Joanne McCarthy, published by The Newcastle Courier on March 20, 2019.
GIST: "FOUR forensic pathologists have told the Folbigg baby deaths inquiry that smothering a child can leave signs on a baby's body but can also occur and "leave no trace". The four include Victorian Institute of Forensic Medicine Professor Stephen Cordner, whose report that there was nothing to suggest the four Folbigg babies had been killed, let alone smothered, was in a petition to the NSW Governor in 2015 seeking a judicial review of the Folbigg case. Kathleen Folbigg was convicted in 2003 of killing her four babies at Singleton between 1989 and 1999 and is serving a minimum 25 year jail sentence. An inquiry called by NSW Attorney General Mark Speakman was told on Tuesday that blood and froth on the mouth of Caleb Folbigg, the first of the Folbigg children to die at only 19 days old, was not unusual in Sudden Infant Death Syndrome (SIDS) cases. "The presence of frothy bloody fluid is commonplace," said forensic pathologist Professor John Hilton, who performed an autopsy on Laura Folbigg, the fourth baby to die, and gave evidence at her mother's trial. Professor Cordner, Professor Hilton, Professor Johan Duflou and Newcastle Deprtment of Forensic Medicine Dr Allan Cala all answered yes when asked by counsel assisting the inquiry, Gail Furness, SC, if "smothering can leave signs but it also may not leave signs". Professor Hilton told the inquiry that research by University of Newcastle Professor Cecelia Blackwell linking minor infections, an inflammatory response in babies and SIDS was "a very interesting theory". Dr Cala told the inquiry it was yet to achieve "broad forensic medical agreement". Three of the four Folbigg babies had mild infections in the period before their deaths. Dr Cala, who gave evidence at the 2003 trial, told the inquiry he would always have concerns if three babies in one family died sudden, unexplained deaths. "I'd be extremely cautious," he said. "If I was on the receiving end of a third death, assuming the other two had been investigated elsewhere... I wouldn't call it a category of SIDS (Sudden Infant Death Syndrome) because there were three deaths," Dr Cala said. "I would have to ask the question is something being missed here, or has a comprehensive investigation of any of them been done and has something been missed?" Professor Cordner, that there is nothing from a forensic pathology viewpoint to suggest any of the four Folbigg babies, Caleb, Patrick, Sarah and Laura, had been killed, let alone smothered by their mother. Professor Cordner found there were identifiable natural causes of death for Patrick and Laura, and natural causes are a plausible explanation for the deaths of Caleb and Sarah. In his report Professor Cordner said much of the forensic pathology discussed at the trial was "misconceived, based as it is on a flawed understanding of asphyxia". "Asphyxia is not a helpful word in forensic pathology, is not understood in a uniform way, is not a diagnosis and is not diagnosable," he wrote. "Yet the word is at the core of the main question asked repeatedly by the prosecution during the trial : 'Did this child/these children suffer an acute catastrophic asphyxiating event?'" Professor Cordner said the question was not capable of an answer if it was intended to be a technical question in forensic pathology. In his report Professor Cordner said the trial included evidence given under circumstances where a "default diagnosis of murder" was discussed. "The fact that an infant can be smothered without leaving signs, the misunderstanding of asphyxia (in particular that it is a diagnosis and/or that it can be diagnosed), and there being no families in the literature with three or four SIDS, contributed significantly to a homicide hypothesis which in fact has little forensic pathology content." The three other forensic pathologists told the inquiry they agreed with Professor Cordner about his views on the use of the word asphyxia as "not a diagnosis". Questioned by counsel assisting the inquiry, Gail Furness, SC, about whether SIDS always meant a natural death, Professor Cordner said it did not. "We all understand whenever we use the word or term SIDS, there's always the possibility there may be an unnatural explanation, or there may be a natural explanation we can't uncover," Professor Cordner said. On Tuesday Kathleen Folbigg continued to follow the inquiry via an audio-visual link from jail after choosing not to attend the hearing at Lidcombe Coroners Court in person. She will give evidence from April 17. The inquiry continues."

The entire story can be read at:
https://www.bellingencourier.com.au/story/5964009/smothering-can-leave-no-trace-folbigg-inquiry-told/?cs=9397

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher; The Charles Smith Blog.

'False confessions': 2018 documentary lauded by The Marshall Project as one of its favourite podcasts and films of 2018 is subject of a cuurent Al Jazeera story on false confessions. A link to the film - which can be viewed until April 10, 2019 - is provided.


PUBLISHER'S NOTE:The Marshall Project provided a fulsome "bounty" of podcasts and films for 1918. One of these films - False confessions directed by Katrine Philp - provides excellent insights into its subject matter. Thanks to Aljazeera we are able to watch 'False Confessions" at the link below, until April 10, 2019.

Harold Levy: Publisher; The Charles Smith Blog.

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PUBLISHER'S NOTE: This Blog is interested in false confessions because of the disturbing number of exonerations in the USA, Canada and multiple other jurisdictions throughout the world, where, in the absence of incriminating forensic evidence the conviction is based on self-incrimination – and because of the growing body of  scientific research showing how vulnerable suspects   are to widely used interrogation methods  such as  the notorious ‘Reid Technique.’"

Harold Levy: Publisher; The Charles Smith Blog:

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'FALSE CONFESSIONS': "Would you confess to a crime you did not commit? There are people who do. Attorney Jane Fisher-Byrialsen interviews a man who was her client, Korey Wise, one of the falsely accused Central Park Five. Wise was one of five teenagers who went to prison for a brutal rape of the woman who became known as the Central Park jogger. She also interviews Renay Lynch, another client who is still imprisoned -- now for more than 20 years. The stories of two others are also told, Malthe Thomsen, a Danish intern accused of child abuse, and Lorenzo Montoya, a teenager who was coaxed into confessing to killing a high school teacher. The film is directed by Katrine Philp. — Marcia Davis;"
 
https://www.themarshallproject.org/2018/12/12/a-bounty-of-2018-podcasts-and-films

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Watch  'False Confessions' at the link below: (But watch soon! This movie will be removed from the Aljazeera site on April 10, 2019.)

https://www.aljazeera.com/programmes/witness/2019/03/false-confessions-innocent-people-confess-crime-190311093100363.html

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher; The Charles Smith Blog.

Monday, March 18, 2019

Robert Yell: Kentucky: Outdated arson 'science': Major Development: His 2006 Arson Conviction has been dismissed..."Thursday March 14, 2019, more than two years after granting Robert Yell a new trial, Logan Circuit Court Judge Tyler Gill dismissed, Mr. Yell’s 2006 arson and manslaughter indictment, ending a more than decade-old legal battle."..."Following a two-day evidentiary hearing, Judge Gill ruled from the bench that Mr. Yell was entitled to a new trial. In his written order, he found the testimony of the Commonwealth’s fire investigation experts was “based on obsolete and erroneous techniques, ‘rules of thumb’, and assumptions, and none can be relied upon as true.” Despite this ruling, former Commonwealth’s Attorney Gail Guiling appealed the new trial. While the appeal was pending, just a month after Judge Gill’s ruling, Mr. Yell was released on bond after serving twelve years of his fifty-two year sentence. Upon review of the case, however, the Kentucky Attorney General’s Office moved to dismiss the appeal. Now newly-elected Logan County Commonwealth’s Attorney Paul Neil Kerr II has followed suit, moving for the dismissal and noting there is currently no evidence to again convict Mr. Yell of an intentional fire. Said Kerr in the motion, “[i]n light of the evidence being excluded, the Commonwealth is currently unable to present a case sufficient to survive a motion for directed verdict.”


PASSAGE OF THE DAY: "In 2004, Mr. Yell’s trailer burned down, resulting in the death of his two-year-old son, and severe burns to his 11-month-old daughter. Fire investigators determined that the fire was intentional based on the presence of 1) low, deep burns at 2) three separate points of origin; 3) V and U patterns; and 4) unconfirmed “alerts” by an accelerant detection canine. The 2006 trial resulting in Mr. Yell’s wrongful conviction relied on the testimony of these fire investigators, despite their inability to provide scientific explanations for why their findings were indicative of arson. In 2016, counsel for Mr. Yell, Krista Dolan, Staff Attorney with the Innocence Project of Florida and then-attorney with the Kentucky Department of Public Advocacy, filed a motion for a new trial. The basis of the motion was that Mr. Yell’s due process rights had been violated based on the admission of evidence at trial now known to be scientifically invalid. The motion was supported by the affidavit of a fire investigation expert funded by the Kentucky Innocence Project. The Innocence Network also filed an amicus brief in support of Mr. Yell’s motion. Following a two-day evidentiary hearing, Judge Gill ruled from the bench that Mr. Yell was entitled to a new trial. In his written order, he found the testimony of the Commonwealth’s fire investigation experts was “based on obsolete and erroneous techniques, ‘rules of thumb’, and assumptions, and none can be relied upon as true.” Despite this ruling, former Commonwealth’s Attorney Gail Guiling appealed the new trial."

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STORY: "2006 Arson Conviction in Logan County dismissed,"  published by WKBO  on March 14, 2019.

GIST: "Thursday March 14, 2019, more than two years after granting Robert Yell a new trial, Logan Circuit Court Judge Tyler Gill dismissed, Mr. Yell’s 2006 arson and manslaughter indictment, ending a more than decade-old legal battle. “It feels like a dream. I’ve just been fighting this for so long, I thought it would never come to an end,” Yell said. In 2004, Mr. Yell’s trailer burned down, resulting in the death of his two-year-old son, and severe burns to his 11-month-old daughter. Fire investigators determined that the fire was intentional based on the presence of 1) low, deep burns at 2) three separate points of origin; 3) V and U patterns; and 4) unconfirmed “alerts” by an accelerant detection canine. The 2006 trial resulting in Mr. Yell’s wrongful conviction relied on the testimony of these fire investigators, despite their inability to provide scientific explanations for why their findings were indicative of arson. In 2016, counsel for Mr. Yell, Krista Dolan, Staff Attorney with the Innocence Project of Florida and then-attorney with the Kentucky Department of Public Advocacy, filed a motion for a new trial. The basis of the motion was that Mr. Yell’s due process rights had been violated based on the admission of evidence at trial now known to be scientifically invalid. The motion was supported by the affidavit of a fire investigation expert funded by the Kentucky Innocence Project. The Innocence Network also filed an amicus brief in support of Mr. Yell’s motion. Following a two-day evidentiary hearing, Judge Gill ruled from the bench that Mr. Yell was entitled to a new trial. In his written order, he found the testimony of the Commonwealth’s fire investigation experts was “based on obsolete and erroneous techniques, ‘rules of thumb’, and assumptions, and none can be relied upon as true.” Despite this ruling, former Commonwealth’s Attorney Gail Guiling appealed the new trial. While the appeal was pending, just a month after Judge Gill’s ruling, Mr. Yell was released on bond after serving twelve years of his fifty-two year sentence. Upon review of the case, however, the Kentucky Attorney General’s Office moved to dismiss the appeal. Now newly-elected Logan County Commonwealth’s Attorney Paul Neil Kerr II has followed suit, moving for the dismissal and noting there is currently no evidence to again convict Mr. Yell of an intentional fire. Said Kerr in the motion, “[i]n light of the evidence being excluded, the Commonwealth is currently unable to present a case sufficient to survive a motion for directed verdict.” “While the fire in which Mr. Yell lost his son was a horrible tragedy, it was not an arson, and so was not a crime,” Dolan said. “We applaud the Commonwealth for recognizing that there is not sufficient evidence of arson to proceed to trial, and we are confident that further investigation won’t yield such evidence. The law always lags behind science, but we are happy that here, science prevailed.” Amy Robinson Staples of the Exoneration Project, who also represents Mr. Yell added: “Today has been a long time coming for Mr. Yell, who can finally begin to fully grieve the tragic loss of his son and obtain some closure. We are hopeful that Mr. Yell’s case can serve as an example in the Commonwealth and throughout the United States and prevent further convictions based on unreliable, junk arson science.""


The entire story can be read at:
https://www.wbko.com/content/news/2006-Arson-Conviction-in-Logan-County-dismissed-507184811.html

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher; The Charles Smith Blog.